English Court of Appeal attracted by NZ defamation law

The English Court of Appeal has suggested that the UK adopt the terminology used in New Zealand and other jurisdictions and reframe its ‘fair comment’ defence against defamation to an ‘honest opinion’ defence to better protect the free expression of sincerely held value judgements.

The Court delivered this view when supporting a science writer’s right to make a series of strong criticisms of the British Chiropractic Association.

This Brief Counsel looks at the decision, and its possible implications for New Zealand.

In British Chiropractic Association v Singh [2010] EWCA Civ 350, a formidable Court of Appeal bench comprising the Lord Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sedley, was called to determine one of the classic dilemmas in defamation law: whether a stinging disparagement was a statement of fact, or opinion.

Dr Singh had written an article in The Guardian where, in the context of comment and debate during Chiropractic Awareness Week, he wrote:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

The chiropractors were displeased. They said Dr Singh’s comments meant that the BCA knowingly promoted chiropractic as an effective treatment for certain conditions where there was no evidence to support such claims. There was a fierce debate in the High Court before Justice Eady (one of the UK’s leading defamation law experts) about whether Dr Singh’s comments were fact or opinion. Justice Eady maintained they were statements of fact.

Why did it matter?

If Dr Singh’s criticisms were categorised as statements of fact, to succeed in a defamation action he would need to prove that they were true. That would have required armies of expensive expert witnesses, one army for each side. Where the critical statement is categorised as one of opinion, or fair comment as it is known in England, that makes life easier for the defendant. If Dr Singh could show that he had come to his opinion, genuinely held, after reviewing various scientific trials he could successfully defend BCA’s defamation suit, and probably at a fraction of the cost.

The Court of Appeal reversed Justice Eady. In a very readable decision, including detailed quotation from Milton’s Areopagitica (1644) on philosophic freedom and the unhappy fate of Galileo under the Inquisition, the Court ultimately agreed with Judge Easterbrook, Chief Judge of the US Seventh Circuit Court of Appeals who had ruled in a similar case:

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.”

In other words, the Court concluded that Dr Singh’s published statements were not raising issues of verifiable fact but expressing a value judgement (here, on the lack of worthwhile evidence to support the BCA claims). Even the word “bogus” was, in the context, “more emphatic than assertive”.

Fair comment vs honest opinion

In making its finding, the Court of Appeal also recommended that the UK should follow the terminology used by other jurisdictions, such as New Zealand, and use “honest opinion” rather than “fair comment” as a defence.

“It is not open to us to alter or add to or indeed for that matter, reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to “decay with...imprecision”. ‘Honest opinion’ better reflects the realities.”

The test in New Zealand is in part codified in the Defamation Act 1992, and applies to genuine opinions even if motivated by malice.

Implications of the UK decision here

We expect the decision to be of considerable interest in New Zealand. It remains to be seen whether the principles in favour of characterising strong value judgements as opinion, will be applied to a wider range of topical issues.

Before this decision, New Zealand defamation lawyers defending a case similar to Dr Singh’s would have run an honest opinion defence, but in their heart of hearts would have expected the Court to rule as Justice Eady did. Now there is a clear authority allowing informed commentators on scientific issues to express strongly divergent views.

The Court also noted that the litigation had almost certainly had a chilling effect on public debate which might otherwise have assisted patients to make informed choices about the use of chiropractic and observed that this would be “a surprising consequence of laws designed to protect reputation”.

Thus the judgment firmly upholds a “marketplace of ideas” approach to freedom of expression, where reputation is not to be protected over knowledge.